Prosecutorial Discretion

by lizard

Two years ago I had a friend who was facing felony charges for aggravated assault. The incident happened on a Tuesday and the Missoulian had no problem turning his case into a story TWO DAYS LATER, on a Thursday. The article was based on the “charging documents” and included his name. The case fell apart, but you never hear about that in our local paper of record.

If you are poor and unable to afford good legal representation, you are at the mercy of prosecutorial intimidation. From listening to my friend’s experience, I got a little peek into how the system can steam roll over economically disempowered individuals. It was disturbing.

The abuse of prosecutorial discretion got major attention nearly two years ago when Aaron Swartz committed suicide. The post-mortem did not cast the Justice Department’s despicable foot soldier, Carmen Ortiz, in a very favorable light. Here’s a bit of context from a NYT opinion piece:

At the funeral for 26-year-old tech prodigy Aaron Swartz, who hanged himself last Friday, his grief-stricken father said that “Aaron did not commit suicide—he was killed by the government.” Legal bloggers have been debating a less literal version of that accusation: Did Mr. Swartz’s prosecutors go too far? Did their zeal border on bullying?

A programmer who helped create RSS, Mr. Swartz was also a charismatic leader in the movement to make information free online. His dedication to that movement led him to try to “liberate” the database of more than 1,000 academic journals gathered by JSTOR and sold to universities, libraries and publishers. Over the course of a month or two in 2010 and 2011, he downloaded 4.8 million articles. He was arrested before he could carry out his plan. He turned over his hard drives and JSTOR chose not to sue him.

But the Justice Department, through United States Attorney Carmen Ortiz in Boston, charged him with computer fraud, wire fraud and several of other crimes. Announcing his indictment in 2011, the U.S. attorney’s office said, “If convicted on these charges, Swartz faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.”

As Emily Bazelon wrote in Slate, “the causes of suicide are almost always complex, and Swartz suffered from depression.” On Wednesday, Ms. Ortiz released a statement extending her sympathy to “everyone who knew and loved” Mr. Swartz. She also defended herself by emphasizing that she had planned to recommend a sentence of six months at a low-security prison in exchange for his guilty plea.

With my friend, it was just some poor guy to be bullied into a plea agreement—an easy mark to add to the win column of an aspiring attorney. For Aaron Swartz, it was a higher profile legal war of choice to add to the win column of an aspiring attorney.

I’m juxtaposing these two examples of prosecutorial discretion (and media attention) because Christopher Hymel was shot and killed on September 1st. The young man who killed him still has yet to be named. The Missoula County Attorney’s Office has been examining the evidence for over a week.

And crickets.


  1. Steve W

    Friday is the preferred suppressed news release day. Maybe one of these Fridays…




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